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Good v. Adams

United States District Court, W.D. Wisconsin

July 18, 2019

THOMAS J. GOOD, Plaintiff,
v.
NATHAN ADAMS, GREG CISNEROS AND CITY OF BELOIT, Defendants.

          OPINION AND ORDER

          BARBARA B. CRABB DISTRICT JUDGE.

         Plaintiff Thomas J. Good is proceeding on claims under the Fourth Amendment that City of Beloit police officers Nathan Adams and Greg Cisneros subjected him to a forced and unwanted blood draw in violation of his Fourth Amendment rights. He also contends that the City of Beloit enacted policies or practices that caused the constitutional violation.

         The parties' cross motions for summary judgment are before the court. Defendants contend that the blood draw was lawful because plaintiff consented to it and because exigent circumstances justified it. They also contend that they are entitled to qualified immunity and that plaintiff cannot point to any City of Beloit policy or practice that caused any constitutional violation. Dkt. #18. Plaintiff contends that he is entitled to partial summary judgment with respect to liability against defendants Adams and Cisneros. Dkt. #17. Because I conclude that there are genuine disputes of material fact regarding whether plaintiff consented to the blood draw, whether there were exigent circumstances and whether the City of Beloit's policies caused a constitutional violation, I am denying the motions.

         From the parties' proposed findings of facts and responses, I find the following facts to be material and undisputed unless otherwise noted.

         UNDISPUTED FACTS

         At approximately 2:09 a.m. on December 29, 2014, plaintiff Thomas Good was driving on a street in Beloit, Wisconsin without his headlights illuminated. Defendant Greg Cisneros, a City of Beloit police officer, initiated a traffic stop and approached plaintiff. Cisneros could smell alcohol, suspected that plaintiff was intoxicated and called defendant Officer Nathan Adams for back up. After Adams arrived, plaintiff attempted to complete several field sobriety tests but performed poorly. Defendants arrested plaintiff for operating while intoxicated as a third offense.

         Wisconsin's “implied consent” law deems drivers to have consented to breath or blood tests if an officer has reason to believe that they have committed one of several drug-or alcohol-related offenses. Wis.Stat. §§ 343.305(2), (3). Officers seeking to conduct a blood alcohol concentration test must read aloud a statement called “informing the accused, ” which declares the officers' intent to administer the test and advises drivers of their options and the implications of their choice. Id. § 343.305(4). If a driver's blood alcohol level exceeds the legal limit, the driver's license will be suspended, but if a driver refuses testing, the license will be revoked, the refusal may be used against the driver in court and the driver may face civil forfeiture penalties. Id.

         The Beloit Police Department has a breath test machine at the police station that can be used to test a driver's blood alcohol concentration. However, under an internal policy of the Beloit Police Department, officers that suspect an individual of driving while intoxicated may ask the individual to consent to a blood draw, rather than a breath test, to determine blood alcohol concentration. Blood tests must be performed at a hospital. Because Beloit Memorial Hospital is the closest hospital to the city's police station, Beloit police officers generally take arrested individuals to Beloit Memorial for blood draws, though police officers can take individuals to another hospital if it is more convenient. Some officers take arrested drivers directly to a hospital for a blood draw. However, in this instance, defendants took plaintiff to the police station to complete the citation and other paperwork.

         While at the police station, at 3:07 a.m., defendant Adams reviewed the “informing the accused” form with plaintiff. Plaintiff seemed confused and asked Adams to read the form again, which he did. Adams then asked plaintiff if he would submit to a blood draw. Adams did not ask plaintiff if he would submit to a breath test. Plaintiff responded that he would submit to a blood draw only if the draw was performed at a hospital outside of Beloit. Plaintiff stated that he did not trust the Beloit police department or anyone affiliated with Beloit and that he had been “railroaded” by the City of Beloit in the past. Plaintiff asked whether the blood draw could be performed at Mercy Hospital in Janesville, which was about 25 minutes from the Beloit Police Department. (Beloit Memorial Hospital is about 15 minutes from the police station.) When Adams told plaintiff that the blood draw had to take place at Beloit Memorial and that plaintiff did not have a choice in the medical facility where the draw would occur, plaintiff repeated that he was “not refusing” a blood draw, but that the test needed to be completed somewhere other than Beloit Memorial. (The parties dispute whether plaintiff eventually agreed to submit to a blood draw at Beloit Memorial. Defendants say that after they told plaintiff that the blood draw had to take place at Beloit Memorial, he agreed to the draw. But plaintiff says he never agreed to have his blood taken at Beloit Memorial and that he repeatedly conditioned his consent to a blood draw on the draw's not occurring at Beloit Memorial.) Adams eventually marked the “informing the accused” form as “yes, ” implying that plaintiff had consented to a blood draw to test his blood alcohol concentration. Adams gave plaintiff a copy of the form. (Defendants state that plaintiff “signed” the form, but the form filed with the court shows only Adams's signature. Dkt. #13-1.)

         Defendants then placed plaintiff in a squad car and took him to Beloit Memorial Hospital. Plaintiff and defendants did not communicate during the car ride, and plaintiff said nothing more about the blood draw or Beloit Memorial. When they arrived at the hospital, defendants registered plaintiff, retrieved a sealed blood kit and had a phlebotomist paged. At approximately 3:55 a.m., when a phlebotomist arrived to complete the blood draw, plaintiff became angry and stated, “Now we are gonna have a problem.” He also stated that he was “not going to give” his blood. Defendants then forcibly removed plaintiff's arm from his jacket and held his arm down while the phlebotomist took a blood sample from him. During the blood draw, plaintiff demanded the name of the phlebotomist and asked whether the forced draw was a violation of his Fourth Amendment rights. The results of the blood draw showed that plaintiff had a blood alcohol concentration of 0.212.

         Plaintiff was charged with operating while intoxicated as a third offense. Plaintiff filed a motion to suppress the results of the forced blood test. At the suppression hearing, defendants testified that by the time plaintiff refused the blood draw at the hospital, they did not think they could obtain a warrant and perform the blood test within the “three-hour statutory time frame.” Defendants explained that they had been trained that in drunk driving cases there is a statutory time frame of three hours in which it is important to test for blood alcohol concentration. Specifically, under Wisconsin law, a blood alcohol concentration test result is automatically admitted into evidence at trial if the test was performed within three hours of the traffic stop. If the test is taken after the three-hour window, the evidence is admissible only if an expert provides testimony establishing the evidentiary usefulness of the test results. Wis.Stat. § 885.235(3). Defendants estimated that obtaining a warrant would have taken one-and-a-half to two hours, because they would have had to complete the warrant paperwork, contact a judge, email a copy of the warrant to the judge, discuss the search warrant, print a copy of the search warrant, return to the hospital, read or give a copy of the search warrant to plaintiff and then request a phlebotomist. However, defendant Cisneros also testified that obtaining a search warrant by telephone could sometimes take as few as 30 to 45 minutes.

         Defendants also testified that they thought there were exigent circumstances that justified the forced blood draw based on plaintiff's “withdrawing” his consent after they had already arrived at the hospital. Defendants pointed to a memorandum circulated by the Rock County District Attorney on April 19, 2013. Dkt. #23-3. The memorandum stated that in light of the United States Supreme Court's decision in Missouri v. McNeely, 569 U.S. 141 (2013), officers should get warrants for blood draws. Specifically, the memorandum stated:

Issue: Should law enforcement officers get warrants for ...

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